Fifth Circuit Finds for Louisiana Sexual Harassment Plaintiff

The U.S. Court of Appeals for the Fifth Circuit last week overturned a district court decision holding that the jury had erred as a matter of law when it issued a verdict finding that a Louisiana man had been sexually harassed.  In Cherry v. Shaw Coastal, Inc., the plaintiff, John Cherry, was employed as an instrument man on a surveying crew with his direct supervisor, Scott Thornton, and Thornton’s supervisor, Michael Reasoner.  Cherry alleged that he had been repeatedly sexually harassed by Mr. Reasoner, a charge with which the jury agreed.  The district court, however, held that Cherry had failed as a matter of law to prove Mr. Reasoner had sexually harassed him.  The Fifth Circuit disagreed and vacated the district court’s decision, ordering the court to enter judgment consistent with the jury’s verdict awarding Cherry $500,000.

Cherry began work with Shaw Coastal in March 2007.  Shortly after he began working there, Reasoner began to engage in harassing speech and behavior that would not stop until Cherry finally resigned in September 2007.  This occurred despite repeated requests from both Cherry and Thornton that Reasoner discontinue his behavior, and included frequent and inappropriate touching, suggestive comments, and sexually charged text messages.  Even after Shaw Coastal’s human resources department learned of the harassment, it refused to issue a finding of sexual harassment in May 2007, because it was “one word against the other.”

Citing Oncale v. Sundowner Offshore Servs., the Fifth Circuit held that “a plaintiff may support a claim of same-sex harassment by providing some ‘credible evidence’ that the harasser is homosexual.”  The Court then stated that in La Day v. Catalyst Technology, the Fifth Circuit had held that “two types of evidence that could serve as credible evidence of homosexuality: (1) evidence that the harasser ‘intended to have some kind of sexual contact with the plaintiff rather than to merely humiliate him for reasons unrelated to sexual interest,’ or (2) evidence that the harasser ‘made same-sex sexual advances to others, especially to other employees.’”  The Court then held that Reasoner’s behavior went “far beyond the evidence” that had proved sufficient to support a case of same-sex sexual harassment in La Day.

The Court relied on Harvill v. Westward Commc’ns in disagreeing with the district court’s finding that the harassment had not been “severe or pervasive.”  In that case, the Fifth Circuit had held that “Deliberate and unwanted touching of . . . intimate body parts can constitute severe sexual harassment.”  Once again, the Court held that the evidence Cherry presented here was far worse than that presented in La Day, and therefore found that the district court had erred when it ruled that the defendant’s behavior was not severe or pervasive.

Finally, the Fifth Circuit overruled the district court’s finding that Shaw Coastal was not liable for Cherry’s harassment.  The Court held that the human resource staff’s decision not to act because of “insufficient evidence,” in the face of compelling testimony from both Thornton and Cherry, could reasonably be interpreted as a failure to take prompt remedial action.  As such, the Court vacated the district court’s judgment regarding plaintiff’s sexual harassment claims, and sent the case back to the district court with instructions to enter judgment consistent with the jury’s verdict awarding Cherry $500,000.